[This table, as The Times concedes, shows not only suicides, but also murders of the most atrocious kind, following closely upon the execution of criminals. It is astonishing that the article in question does not even produce a single argument or pretext for indulging in the savage theory therein propounded; and] it would be very difficult, if not altogether impossible, to establish any principle upon which the justice or expediency of capital punishment could be founded, in a society glorying in its civilization. Punishment in general has been defended as a means either of ameliorating or of intimidating. Now what right have you to punish me for the amelioration or intimidation of others? And besides, there is history — there is such a thing as statistics — which prove with the most complete evidence that since Cain the world has neither been intimidated nor ameliorated by punishment. Quite the contrary. — Marx 1
From the point of view of abstract right, there is only one theory of punishment which recognizes human dignity in the abstract, and that is the theory of Kant, especially in the more rigid formula given to it by Hegel. Hegel says:
“Punishment is the right of the criminal. It is an act of his own will. The violation of right has been proclaimed by the criminal as his own right. His crime is the negation of right. Punishment is the negation of this negation, and consequently an affirmation of right, solicited and forced upon the criminal by himself.” [Hegel, Philosophy of Right]
There is no doubt something specious in this formula, inasmuch as Hegel, instead of looking upon the criminal as the mere object, the slave of justice, elevates him to the position of a free and self-determined being. Looking, however, more closely into the matter, we discover that German idealism here, as in most other instances, has but given a transcendental sanction to the rules of existing society. Is it not a delusion to substitute for the individual with his real motives, with multifarious social circumstances pressing upon him, the abstraction of “free-will” — one among the many qualities of man for man himself! This theory, considering punishment as the result of the criminal’s own will, is only a metaphysical expression for the old “jus talionis” [the right of retaliation by inflicting punishment of the same kind] eye against eye, tooth against tooth, blood against blood. Plainly speaking, and dispensing with all paraphrases, punishment is nothing but a means of society to defend itself against the infraction of its vital conditions, whatever may be their character. Now, what a state of society is that, which knows of no better Instrument for its own defense than the hangman, and which proclaims through the “leading journal of the world” its own brutality as eternal law?
When someone commits a crime, they’re declaring “I don’t recognize the law, I make my own rules”. Punishment is society saying “No, we reject your rejection”. This supposedly respects the criminal’s dignity because it treats them as a free rational agent who chose to break the law. The criminal basically “asked for” punishment by their own act of will.
It sounds sophisticated and even humanistic (treating the criminal as a dignified agent rather than just an object to be disposed of). But it’s just a fancy rationalization of “eye for an eye”.
Hegel substitutes an abstraction (free will) for the actual concrete person.
A real person isn’t just “free will floating in a vacuum.” A real person has:
- A specific upbringing
- Economic circumstances (poverty, unemployment, etc.)
- Social pressures
- Limited options
- A whole history that shaped them
We can’t treat free will as if it’s the whole person, when it’s just one quallity among many, and not even the most determinative one.
Now, if crimes observed on a great scale thus show, in their amount and their classification, the regularity of physical phenomena — if as Mr. Quételet remarks, “it would be difficult to decide in respect to which of the two” (the physical world and the social system) “the acting causes produce their effect with the utmost regularity” — is there not a necessity for deeply reflecting upon an alteration of the system that breeds these crimes, instead of glorifying the hangman who executes a lot of criminals to make room only for the supply of new ones?
Crime rates are predictable. You can forecast how many murders, how many forgeries, how many poisonings will happen in France next year—almost like predicting births and deaths.
If crime follows such regular patterns, it’s clearly being produced by social conditions. The system generates a certain amount of crime as reliably as a factory produces goods.
So the question becomes: why are we punishing individuals for “choosing” crime when the social system is manufacturing criminals at a predictable rate? Wouldn’t it make more sense to change the system?The same logic that frames crime as individual moral failing also justifies punishment as “justice” rather than social defense/revenge; hides the systemic causes of crime (poverty, alienation, desperation); protects the system—if criminals are just “bad individuals,” we don’t need to examine what produces them; frames history as the work of great (or evil) men.
The holocaust becomes “Hitler was evil” rather than an analysis of how economic crisis, imperialist competition, and class conflict produced fascism (this confusion leads to a wrong understanding of whether fascism is on the rise today and consequently wrong political strategy).